United States District Court, D. Oregon
DAVID I. MARTIN, Plaintiff,
LEONARD WILLIAMSON, et al., Defendants.
MARK D. CLARKE, Magistrate Judge.
Plaintiff, an inmate in the custody of the Oregon Department of Corrections (ODOC), filed a complaint under 42 U.S.C. § 1983 alleging that his due process rights and his rights under Article I, § 10 of the Oregon Constitution were violated when a disciplinary hearings officer relied on confidential informants and refused his requests to call character witnesses. Plaintiff alleges "pendent and supplemental state law claims" under the Oregon Constitution and common law claims for libel, defamation and slander. Before the court is defendants' Motion for Summary Judgment (#51).
The relevant facts are as follows: After an investigation by defendant Gilbertson, plaintiff was charged with numerous rule violations arising out of his alleged threats to use force against other inmates for extortive purposes. Plaintiff alleges that "Gilbertson's written claims against plaintiff were and are false as a matter of fact." Complaint (#2), p. 5.
At a disciplinary hearing on July 2, 2012, Disciplinary Hearings Officer (DHO) Serrano relied on the statements of four confidential informants. DHO Serrano determined that all four of the informants were reliable and that disclosing the confidential informants' identities would endanger them.
DHO Serrano denied plaintiff's request to call character witnesses at his hearing on the grounds that the proposed testimony would not change the outcome of the hearing.
DHO Serrano dismissed some of the charges, but found plaintiff guilty of Extortion II, Unauthorized Organizations I, and Disrespect, and sanctioned Plaintiff to 150 days in disciplinary segregation, loss of privileges for 21 days and a $100 fine.
Plaintiff alleges that defendants Nooth and Williamson "reviewed and upheld Serrano's finding of plaintiff's guilt" and that defendant "imposed an extended punitive sentence against plaintiff." Complaint (#2), p. 7.
Plaintiff alleges that defendants' conduct violated his procedural and substantive due process rights.
Substantive due process requires only "some evidence" to support a prison disciplinary decision. Superintendent v. Hill , 472 U.S. 445, 454 (1985).
In this case the confidential testimony of four separate credible sources that plaintiff on several occasions threatened violence against other inmates, extorted payments via threats of violence and used his affiliation with the "West Side Gangster" security threat group (gang) to threaten other inmates, constitutes "some evidence" sufficient to satisfy the substantive due process requirement of Hill.
Where a hearings officer's determination in a disciplinary hearing is based on statements of unidentified informants, due process requirements are satisfied as long as: "(1) the record contains some factual information from which the [officer] can reasonably conclude that the information was reliable, and (2) the record contains a prison official's affirmative statement that safety considerations prevent the disclosure of the informant's name. Review of both the reliability determination and the safety determination should be deferential." Zimmerlee v. Keeney , 831 F.2d 183, 186 (9th Cir. 1987). Reliability may be established by: (1) the oath of the investigating officer appearing before the committee as to the truth of his report that contains confidential information; (2) corroborating testimony; (3) a statement on the record by the hearings officer that he had first hand knowledge of the sources of information and considered them reliable based on the informant's past record; and (4) an in camera review of the documentation from which the reliability is assessed. Id.
In this case the hearings officer noted that there were multiple confidential informants that he relied on. As noted above, corroborating testimony is sufficient for a hearings officer's reliability determination. In addition, the hearings officer properly determined that disclosing the informants' identities to plaintiff would endanger the informants. Serrano Declaration (#57) and Supplemental Serrano Declaration (#57) - submitted in camera.
Plaintiff claims that his procedural due process rights were violated because he was not allowed to call. "character witnesses."
Although an inmate has a right to call witnesses at a disciplinary hearing in order to "marshal the facts and present a defense, " Wolff v. McDonnell , 418 U.S. 539, 564, (1974), that right is not unlimited. A hearings officer may decline an inmate's request to call witnesses, "for irrelevance, lack of necessity, or the hazards presented in individual cases." Id. at 566; see also, Piggie v. Cotton , 344 F.3d 674, 677 (97th ...